What Is A Tribunal

The term tribunals is used as though its meaning is self-evident. In fact, the word has not been used with consistency, and no very precise definition can therefore be given. However, as a start, one can say that administrative lawyers generally use the word 'tribunal' to describe any statutory body which possesses most or all of the following characteristics:

It is independent of the administration, and decides cases impartially as between the parties before it. This feature serves to distinguish the 'tribunal remedy' from that of the 'internal administrative review' of a decision, which may sometimes be offered by a department.

It reaches a binding decision in relation to the cases heard. This serves to distinguish tribunals from inquiries. The latter hear evidence but, generally, will only make recommendations to the ultimate decision maker.

Its decisions are usually reached by a 'panel' of tribunal members rather than by one lone adjudicator. Members commonly do not serve full-time, are not professional judges, and in many cases are not lawyers either. The 'mixed panel' consisting of a lawyer-chair and two lay persons, each reflecting different opposing or contrasting interests, is now typical.

It adopts a procedure akin to, though rather simpler and more flexible than, that of a court of law. Yet, procedure is normally adversarial rather than inquisitorial. (This difference will be explained further down).

It has a permanent existence, the tribunal having been established specifically to deal with a particular type of case, or with a number of closely related types of cases. This differs from Court of Law because, even though they are permanent institutions, they have jurisdiction over a much wider range of different subjects [1] .

These characteristics serve to illustrate the supposed advantages of tribunals over the Courts of Law as processes of adjudication. They should be:

relatively cheap,

they should be more accessible,

be relatively free from procedural technicality,

should hear disputes more expeditiously (efficiently), and

should possess more expert knowledge of the subject matter under dispute.

Franks stated that tribunals have an adjudicating function. The kind of decisions, continued Franks, which tribunals make are those which might be considered suitable for the courts, but which parliament had decided should not be remitted to the 'ordinary courts'. Yet, such decisions should also not be left to be decided in the course of administration of the Department concerned. Tribunals are not ordinary courts, but neither are day appendages of Government Departments.

These statements may be interpreted as meaning that the decisions allocated to tribunals have, by definition, been given to a body independent of the department. Hence, the tribunal is not to be treated as an extension of the Department. Furthermore, while tribunals are not part of the ordinary Courts of law, in their independence of departments and in their function, they are akin to the regular courts [2] .

The Procedural Principles of Tribunals.

Franks, in his report, mentioned the espousal of the three virtues of:

openness,

fairness, and

impartiality,

in the procedure of tribunals. Yet, what does the application of these require in relation to tribunals?

Openness appears to us to require the publicity of proceedings and knowledge of the essential reasoning underlying the decisions. Fairness requires the adoption of a clear procedure which enables parties to know their rights, to present their case fully and to know the case which they have to meet. Impartiality necessitates the freedom of tribunals from the influence, real or apparent, of Departments concerned with the subject matter of their decisions.

Additional criteria may today be thought to be relevant, such as efficiency in the administration of the tribunal and accuracy of the decision making process.

Adversarial or Inquisitorial?

In adversarial proceedings the court, tribunal etc. decides the issue between the adversaries on the basis of the evidence produced by them. It does not itself suggest lines of inquiry, seek evidence or call its own witnesses. It rules on the basis of the evidence put before it, whether the complaint, allegation or charge made by one party against the other has been made out. It does not act on its own information or knowledge. One may say that the tribunal is adjudicating between the parties. A clear example is a criminal trial.

For this system to work properly, both versions put before the court or tribunal must be fully presented and tested. Each party has to have an opportunity to present his case, each being aware of his opponent's case with an opportunity to test and rebut it

In the inquisitorial function, there may well be conflicting interests represented before the 'inquiry' but the purpose here is, if necessary, to go further than the case presented before it and to seek out the truth of whatever is in issue. To this end, the 'inquiry' can carry out its own research, call its own witnesses, suggest what issues can be profitably followed up. There is a whole spectrum of possibilities.

Lord Denning has said, in relation to 'inquisitorial tribunals', that proceedings before such tribunals are not to be regarded as if they were a law suit between opposing parties:

“They are more in the nature of an inquiry before an investigating body charged with the task of finding out what happened."

Informality and an Orderly Procedure.

The Franks Report said that, while informality of tribunal proceedings was desirable, it should not be at the expense of an orderly procedure. The object should be a combination of a formal procedure with an informal atmosphere. The latter meaning a sympathetic attitude on the part of the tribunal and the absence of the trappings of a court.

The achieving of an orderly procedure is likely to require proper rules of procedure. It is not the case that such rules are incompatible with a degree of informality.

The avoidance of formality does not signify a slap-dash attitude by the tribunal to its task by, for example, failing to pay scrupulous attention to the substantive law it is required to apply. Nor does it mean a procedure as simple as possible in light of the issue to be decided. The fact is that the complexity of the legislation affecting some tribunals and/or the financial value of the issues at stake may leave little room for departure from a high degree of formality. [3] 

For a tribunal to refer in the information it gives to appellants as to its procedure as 'informal' may mislead. The tribunal itself is confined to the law and the evidence, and the appellant must be aware that he must direct his case to those matters.

Representation, Legal Aid, Advice and Assistance.

Tribunals deal with many problems which the citizen is likely to meet with: employment, taxation, housing, etc. Thus, it is important that potential applicants or appellants to tribunals are aware of their rights in these matters, and are capable of exercising them. This raises the question of the right to be represented before a tribunal, whether by a lawyer or otherwise and the right to advice in preparing one's case. Foulkes also forwards the possibility of forwarding financial assistance to applicants in order to obtain those things.

A reason sometimes given for exclusion, or non-encouragement of legal representation is that the presence of lawyers may rob the tribunal of the informal atmosphere intended and desired. They disturb witnesses and inexpert members of the tribunals by asking awkward questions and making technical points, while their presence increases the likelihood of subsequent proceedings in the Courts to impugn the decision. However, it is now generally accepted that the very nature of the dispute heard means that many tribunals are complex and formal, and that are so complex that skilled legal representation is necessary [4] .

Informality must be combined with order [5] . Lawyers may well need to be required to conduct themselves rather differently from when they appear in the ordinary Courts of law. If the stark contrast were to be presented between legal presentation and non-representation, the former is certainly preferred.

Although tribunals may be relatively informal compared to the ordinary Courts, it nevertheless remains a difficult and daunting prospect for many applicants to represent themselves satisfactorily. Numerous factors, often combing together, account for this: inarticulacy, inexperience in 'public speaking', lack of familiarity with the setting and procedure, failure to grasp the crucial matters in issue, education and perhaps intelligence inadequate to understand the various issues of law which may be by no means simple. These various factors combine to make highly desirable some form of representation at hearings.

Furthermore, it has been found that the lack of representation at hearings leads to unmeritorious cases clogging the tribunal lists. There are also unnecessary and wasteful adjournments or delays because the applicant is poorly prepared or ill-equipped for the hearing.

In Malta, the right to be represented by a lawyer derives from the right to be represented. Still, there are some cases where the legislator deemed it to be better if one were to represent himself. Such a case arises when disputes are held before the Small Claims Tribunal. Article 14 of the Small Claims Tribunal Act states that one can be represented by any person. Yet, if a claim does not exceed a specified amount of money and one is successful in his claim, one will not be allocated the funds to pay his lawyer. This deters a person from employing a lawyer to represent him. However, this does not go against the right to be represent by a lawyer. A lawyer can be employed by the claimant but at his expense.

Yet, the legislator also ensured that there are incentives for a person to represent himself in front of the tribunal. Article 12 of the Regulations of the Small Claims Tribunal provides that the adjudicator can relieve any party who is not being represented by a lawyer or a legal procurator or any professional in a particular field, from the consequences which might arise from the consequences of the failure to follow the rules of procedure procedure laid out in the law regarding the hearing. The adjudicator can do this if it is shown that a mistake or an oversight was made by the person in question.

Public Hearings.

The fact that the hearings are held in public is an important constituent of openness. However there are certain exceptions where hearings are conducted behind closed doors, such as:

where public security is involved.

Where intimate personal or financial circumstances have to be disclosed.

Where questions of professional capacity and reputation are involv [6] ed.

In England, some tribunals are by their rules always required to sit in public, while some always sit in private. The most common provision is that they shall sit in in public but can exclude the public in certain circumstances.

It is characteristic of the judicial process that it is done in public, in contrast with the administrative process which is done in private. The significance of a process being carried out in public is not merely that members of the public can attend, but that the person taking the decision is identified and his name is known or can be discovered.

Another aspect of a tribunal's openness is that its decisions should be published.

Reasons.

The beneficial effects of a duty to give reasons are many. To have to provide an explanation of the basis for their decision is a salutary discipline for those who have to decide anything that adversely affects others. The giving of reasons is widely regarded as one of the principles of good administration, in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations and consistency in decision making

Furthermore, if the decisions are published, the reasons can serve as guidance to others on the body's likely future decisions, and so to deter applications which would be unsuccessful. Moreover, the giving of a reason may protect the the authority/tribunal from unjustified challenges, because those adversely affected are more likely to accept a decision if they know why it has been taken. In addition, basic fairness and respect for the individual often requires that those in authority over others should tell them why they are subject to some liability or have been refused some benefit.

If those who are entitled to be heard have no right to know how a tribunal resolved the issue in dispute at the hearing, they may well regard as an empty ritual their legally conferred opportunity to be heard and to influence the tribunal by producing witnesses and other evidence to establish the relevant facts, advancing arguments on the proper exercise of discretion and the resolution of any legal question and challenging their opponents case. Unless the tribunal makes findings on disputes as to fact, explains the exercise of its discretion and gives its answers to any questions of law, there can be no assurance that the tribunal has discharged its obligation to base its decision upon the material presented at the hearing, rather than on extraneous considerations.

In addition to helping to ensure the fairness of an initial hearing, a requirement to give reasons is of particular importance where decisions are subject to a right of appeal on a question of law. A reasoned decision is necessary to enable the person prejudicially affected by the decision to know whether he has a ground of appeal. It would also assist the appellate Court to scrutinise effectively the decision for relevant error, without necessarily usurping the function of the tribunal by itself redetermining the questions of fact and discretion which Parliament entrusted to the tribunal.

However, what must the reasons issued by an authority or tribunal contain? De Smith, Woolf and Jowell (1995) stated that a general guidance regarding the standards of reasons required can be derived from a consideration of the purposes served by a duty to give reasons. Thus, reasons should be sufficiently detailed as to make quite clear to the parties why the tribunal decided as it did, and to avoid the impression that the decision was based upon extraneous considerations, rather than the matters raised at the hearing. Reasons must also enable the Court to which an appeal lies to discharge its appellate function, and when this is limited to questions of law, it will only be necessary to explain the exercise of discretion and to set out the evidence for the findings of fact in enough detail to disclose that that tribunal has not acted unreasonably.